UK: The IP Year 2007 In Review: Focus On The UK

Last Updated: 14 January 2008
Article by Roger Loosley, Ralph Cox and Stuart Richards

Following our very successful The IP Year 2006 In Review,1 rated most popular Canadian article on the MONDAQ® website (www.mondaq.com) in February 2007, Fasken Martineau's Intellectual Property ("IP") Group is pleased to present The IP Year 2007 in Review focusing on IP developments in the U.K. Our synopsis of the year 2007 significant IP related decisions and noteworthy developments in U.K. law will be helpful and informative for those interested in doing business in the U.K. since these may affect your rights with regard to patent, trade-mark and copyright protection.

Roger Loosley, Ralph Cox and Stuart Richards, of our U.K. office, provide the following updates relating to patents, trade-marks and copyright.

DEVELOPMENTS FROM ACROSS THE POND...

A Quantum Leap Above Our Competitors. On February 1, 2007 Fasken Martineau merged with U.K.'s Stringer Saul LLP, a London-based firm that specializes in listing companies on the Alternative Investment Market (AIM), the junior listing arm of the London Stock Exchange. The firm's London office, Fasken Martineau Stringer Saul (FMSS), is the world's first ever full service U.K.-Canadian law partnership and provides lawyers that practice both English and Canadian law. The office comprises more than 50 lawyers, many of whom are recognised specialists in their field of expertise.

The office provides a broad-based capability in commercial law including company and corporate, commercial agreements, intellectual property, information technology, tax, commercial property, employment, international trade and litigation services. The firm has a strong reputation, born out of specialist legal and commercial expertise, in a number of specific business areas including the AIM market, life sciences, mining and natural resources, publishing and retail property. Its expertise in patent litigation is recognised by its ranking amongst leading London firms in the Chambers 2008 directory, with Ralph Cox being named as a leading individual in the field. Chambers 2008 also gives a high ranking for the life sciences team with Gary Howes and Paul Ranson being highly rated leading individuals.

FMSS provides a gateway for businesses in the U.K. seeking to enter the Canadian market or faced with a Canadian legal issue. Similarly, it provides strategic legal advice on a wide range of Canadian business initiatives to the U.K., Europe and Africa.

There have been many interesting and important developments in the U.K. over the past year. For many of our clients, there is more than just an interest in the IP law of the U.K. as many are or will be actively pursuing rights in that jurisdiction.

PATENTS & DESIGNS

Possible Cost Savings. France will finally ratify the London Agreement thereby bringing it into force, potentially in early 2008. The London Agreement reduces the translation burden on European patent owners in signatory states as its practical effect is that they will only need to submit applications in one of the three official EPO languages - English, French, or German. On grant of the patent only its claims, rather than the entire specification, will then need to be translated into the national language for each country for which the patent is designated.

Software Patents. The Court Of Appeal has clarified the law on the exclusion of computer programs from patent protection in Aerotel Ltd v Telco Holdings Ltd & Ors and Macrossan's Patent Application.2 The Court of Appeal endorsed a new structured approach for assessing the presence of a technical contribution put forward by the Comptroller of the U.K. Intellectual Property Office ("UKIPO") and which should help to address an earlier criticism that the previous test was too vague. The approach is to (a) properly construe the claim; (b) identify the actual contribution; (c) ask whether it falls solely within the excluded subject matter; and (d) check whether the actual or alleged contribution is actually technical in nature. The Patent Office has now adopted this test but considers that in the great majority of cases it will make no difference to its decision on patentability.

An Early Route to Market for Generics? In a potentially significant decision in Arrow Generics Ltd v Merck & Co, Inc.,3 the High Court has held that a generic drug company could request a declaration that its product was obvious at the priority date of a patent application. If so, were the patent granted from that application to cover the product, it would be invalid. The decision therefore opens up the possibility of generic companies (and any other would-be infringer) being able to clear a product's path to market without having to wait for a patent to grant in order to bring invalidity or non-infringement proceedings.

Reformulating the Test: Considering Obviousness Test In the U.K. For 20 years or so the test applied by the courts in England and Wales to determine whether or not the invention claimed in a patent is obvious has been that laid down in the Windsurfing case.4 The Court of Appeal recently decided in Pozzoli SpA v (1) BDMO SA (2) Moulage Industriel de Perseigne SA that the test needed reformulation to ensure that, before trying to identify the inventive concept, the Court identifies the person skilled in the art.5 The restated test is then (a) identify the notional person skilled in the art and then identify the relevant common general knowledge of that person; (b) identify the inventive concept of the claim in question or, if that could not readily be done, construe it; (c) identify what, if any, differences existed between the matter cited as forming part of the state of the art and the inventive concept of the claim or the claim as construed; and (d) viewed without any knowledge of the alleged invention as claimed, did those differences constitute steps that would have been obvious to the person skilled in the art or did they require any degree of invention?

In practice, as with the initial identification of the skilled person, the courts had these points well in mind when applying the Windsurfing test. Hence the changes formalise normal practice rather than constituting a new departure or development in the law on obviousness. In particular, there is no change in the obviousness standard being applied.

TRADE-MARKS

Use Of A CE Mark Does Not Indicate Consent To Parallel Importation. So held the Court of Appeal in the case of Roche Products Ltd & Anr v Kent Pharmaceuticals.6 The subject matter of the dispute were Roche's strips for self-testing blood glucose levels which Kent was parallel importing into the U.K. from the Caribbean. As the strips were sold by Roche for use in clinical trials in the Caribbean only and bore Roche's ACCU-CHECK trade mark, it sued for infringement and applied for summary judgment. Kent defended by arguing that, as the packaging for the strips also bore a CE mark, which indicated approval for sale in the European Union, Roche had consented to the products being put on the market in the EU and so had exhausted its trade mark rights.

Kent's defence foundered on the evidence. The European Court of Justice ("ECJ") case law has held that consent must be clear and unequivocal. Here, the Court of Appeal considered that to even get the argument started would require evidence from an independent expert that, rather than simply indicating regulatory compliance, a CE mark was generally understood by trade mark proprietors and parallel importers as signifying consent to marketing in the EU. Kent had no such evidence and offered no explanation as to why it had not been obtained for the summary judgment hearing.

New Examination Rules For U.K. Trade Marks. As of October 1st, 2007, the UKIPO will no longer automatically refuse to register a new mark where it conflicts with an already registered mark.7 Instead, it will notify both the applicant and the owner of any earlier conflicting mark of the application. The onus is then on either the applicant to amend or withdraw its application or the owner of an earlier mark to oppose the application. The change brings UKIPO practice on examination into line with the Community registry8 and will benefit applicants by simplifying the examination procedure. On the other hand, it will increase the number of oppositions and so the costs of some applications as well as the costs for trade mark owners of policing their portfolios.

COPYRIGHTS

Copyright Enforcement. In May 2007, Parliament's Select Committee on Culture, Media and Sport issued a report recommending a number of measures to toughen copyright enforcement. Recommendations included: (a) an investigation into reported difficulties for rights owners in obtaining additional damages from infringers; (b) unauthorised copying and commercial distribution of illicit recordings made in cinemas to be made a criminal offence; and (c) the introduction of an exemption to copyright infringement for domestic copying (including for use in, for example, portable media players and car players) but not onward transmission of copied material. The Report noted that digital rights management techniques should not be unduly restrictive as that was counter-productive as it discouraged the legitimate market.

CONFIDENTIALITY & COMPETITION

Confidentiality At A Price. In May, the House of Lord's long awaited decision in Douglas v Hello! was finally delivered after a lengthy legal battle and months of deliberations by the Lords.9 By a majority, the Lords found that the exclusive right to publish photographs of the Douglas's wedding given to OK was protectable through the laws of confidence - OK's payment of £1 million for the exclusive both indicated confidentiality and gave an expectation that the law would protect it. In their decision, the Lords also clarified the economic torts of causing another loss by intentional acts against third parties thereby significantly reducing their scope.

In November 2000, OK beat HELLO! for the exclusive right to publish photographs of the wedding of Catherine Zeta Jones and Michael Douglas. HELLO! bought unofficial photographs taken surreptitiously by an uninvited photographer and published them only a few hours after OK's exclusive. OK sued alleging breach of confidence and unlawful interference with its business.

In Lord Hoffmann's view, "[t]he information in this case was capable of being protected [under the laws of confidentiality] simply because it was information of commercial value over which the Douglass had sufficient control to enable them to impose an obligation of confidence... . OK had paid £1m for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding". The "any photographs" was key as it meant that the obligation survived the publication of the particular photos used in OK's exclusive and so caught those published later by HELLO!.

Competing Ex-Employees. A recent appeal case has shown the difficulties of stopping a former employee from setting up a competing business on leaving where there has been no misappropriation of the employer's information or intellectual property.10 In Helmet Integrated Systems Ltd v Tunnard & Ors, a Mr. Tunnard, a salesman for a helmet manufacturer, had come up with a new design concept for a modular helmet but, thinking that his employer would not be interested, developed it in his own time. He then resigned and set up a company to sell the new helmet in competition with his former employer's products. His employer sued for design right infringement as well as breach of Mr. Tunnard's duties as an employee.

The Court of Appeal held that, while the duty of fidelity requires an employee not to compete when still employed, the duty does not extend post-employment and therefore cannot prevent preparations to compete while still an employee either, provided there is no breach of contractual or other implied duties or use of trade secrets. Here Mr. Tunnard's employment contract had no post-employment restrictive covenants and lacked the necessary clear wording to restrict his right to prepare. The case therefore illustrates the importance of having the right contractual provisions in place in preventing employees from competing (and preparing to compete).

No Data Protection Or Privacy. A recent High Court case shows that the courts are willing to take a pragmatic approach to the application of the Data Protection Act 1988, which imposes various duties on persons that process or deal with personal data. The case, Murray v Express,11 mainly concerned an alleged breach of privacy by a photograph of JK Rowling's child taken covertly while the family walked down the street and later published in a newspaper. The Rowling family effectively sought a right to personal privacy when engaged in ordinary activities wherever conducted which, despite the judge's sympathy for shielding children from intrusive media attention, he thought was going too far and so struck out their privacy claim as hopeless.

It was agreed by the parties that the photograph was personal data, that the defendant newspaper company was a "data controller" under the Act and that duties applied to the way the company processed the photograph. Given there was no breach of privacy, the photograph was processed lawfully. The last ditch argument tried by the Rowlings was that the photograph constituted sensitive personal data on the child's race and health. The judge rejected the argument and found that by appearing in public the claimant had deliberately made that data public leaving no ground for complaint. The only breach the company had committed was that it was not registered with the Information Commissioner as a data controller at the relevant time.

The Murray case shows how the data protection rules can apply to unexpected areas of business, and the need to be registered, but more importantly imposes common sense limits on what can constitute unfair processing and sensitive data.

* * * * * * * * * * * * *


THE FASKEN MARTINEAU INTELLECTUAL PROPERTY GROUP KEEPS GROWING! In 2007, we again increased our patent bench strength by adding three patent agents to the group: Alexandre Abecassis, Serge Lapointe and Lesley Morrison. Alexandre practices in the area of high technology while Serge Lapointe is responsible for patents and patent applications in the biotechnology, pharmaceutical and chemical industries. Our most recent addition, Lesley practices in the area of high technology. All of our new patent agents draft, file and prosecute patent applications before CIPO, the USPTO and WIPO.

Chloé Latulippe and Marc-André Nadon have also joined us. Chloé and Marc-André practice in the fields of intellectual property, media and communications law. They represent and advise our clients on various aspects of intellectual property law, notably copyrights, trade secrets, patents and trade-marks.

In addition to our merger with U.K.'s Stringer Saul, Fasken Martineau also merged on April 1st, 2007 with the Ottawa firm of Johnston & Buchan LLP, a highly regarded Ottawa practice founded in 1980. The new Ottawa office of Fasken Martineau is comprised of 13 lawyers with extensive experience in communications, trade and business law as well as in a number of other areas of public law. With the new office, Fasken Martineau has added a substantial capability in intellectual property in the Ottawa region. In addition to their communications practices, Stephen Acker has an ancillary practice in trade-mark prosecution and oppositions while Aidan O'Neill, Jay Kerr-Wilson and Robert Buchan practice extensively in copyright law, particularly before the Canadian Copyright Board.

FASKEN MARTINEAU IN THE NEWS. Christian Leblanc of our Intellectual Property Group named Rising Star in the legal industry by Lexpert.12 Christian is a partner in our Montreal Office. He practices commercial and civil litigation, with a particular emphasis on intellectual property, high technology, media law, communications and defamation. Honouring Canada's Leading Lawyers Under 40 from law firms and in-house, this Lexpert annual award recognizes the country's best and brightest lawyers under 40. The Lexpert Leading Lawyers Under 40 will be featured in the November/December issue of Lexpert magazine.

Congratulations to Stéphane Gilker and Marek Nitoslawski of our Intellectual Property Group who were both recognized Best Lawyers in Canada 2008. The prestigious The Best Lawyers in Canada 2008 directory lists 79 of the firm's lawyers as experts in various areas of practice. Each year, the legal directory compiles a list of lawyers recognized for their excellence in their field of practice. Nominees are selected by means of a rigorous survey and a series of interviews conducted with frontline lawyers. Inclusion in The Best Lawyers in Canada is a great distinction only conferred upon the very best practitioners.

Fasken Martineau awarded Best Integration Award by the Marketing Research and Intelligence Association (MRIA) On June 15, 2007, the Marketing Research and Intelligence Association (MRIA) granted Fasken Martineau and Corbin Partners Inc. its prestigious Best Integration Award. The award came as a result of the efforts of May Cheng, Julie DesRosiers and Leanne Shaughnessy for their innovative work in a trade-mark infringement case involving trade-marks owned by Victoria's Secret and La Senza. In conjunction with Corbin Partners Inc., the team integrated different sources of information including a mystery shopping survey which was accepted by the Ontario Superior Court of Justice as evidence of confusion on the interlocutory injunction application. This represented the first time a Canadian court has accepted mystery shopping as expert survey evidence in an intellectual property dispute.

Recognition for Fasken Martineau Stringer Saul's IP and life sciences teams. The partners in our London office's IP group are recognised leaders in the field in Chambers 2008 and the IP and life sciences group is also recommended by Legal 500. Our expertise in patent litigation is recognised by its ranking amongst leading London firms in the Chambers 2008 directory, with Ralph Cox being named as a leading individual in the field. Chambers 2008 also gives a high ranking for the life sciences team with Gary Howes and Paul Ranson being highly rated leading individuals.

THINK OF US FOR IP. Comprised of a specialized group of lawyers, patent agents and trade-mark agents, our multidisciplinary group advises clients on all aspects of intellectual property and is dedicated to understanding the technology and business environment of our clients. Our combined technical training and experience offer a breadth of patent expertise in the life sciences, physical and logical systems, software, business methods, mechanical and electromechanical devices as well as manufacturing systems, methods and processes.

We also have trade-mark lawyers, registered agents and clerks who file and prosecute trade-mark applications in Canada and internationally through an established network of associate law firms. Our trade-mark professionals are also experienced in validity/infringement opinions, availability/clearance reports, litigation and commercial transactions.

Professionals in our Intellectual Property Group are active committee members of various legal and industry associations, and frequently present and publish on topics of interest in the field of intellectual property law. Our IP litigators have extensive tribunal and litigation expertise having litigated on both the provincial and federal levels, and are experienced with all Courts at all levels of common law and civil law, including Quebec, in a wide range of intellectual property disputes.

ABOUT FASKEN MARTINEAU

Overview Fasken Martineau is one of Canada's leading national business law and litigation firms. Internationally, our London and New York locations make Fasken Martineau a leader among Canadian firms with an established presence in the two major financial centres of the world and our Johannesburg office makes Fasken Martineau unique, as the only Canadian law firm with an office on the African continent.

Our Global Mining Group has been ranked Number One globally for three years in a row by Who's Who Legal; the International Who's Who of Business Lawyers. Many of the firm's lawyers are acknowledged leaders in their fields of expertise. Seventy-five of our lawyers are recognized in the Canadian Legal Lexpert Directory. Nineteen are ranked among the 500 leading lawyers in Canada. Fourteen of the firm's partners are cited in the prestigious Chambers Global "The World's Leading Lawyers" Directory. Fasken Martineau is acknowledged for its particular experience in cross-border M&A and securities work, banking and financial services, information technology law and intellectual property, insolvency and restructuring, tax, litigation, labour, estates and trusts, and arbitrations.

The firm provides services in virtually all areas of Canadian law to clients located within Canada and internationally, and in almost all industry sectors. Fasken Martineau also has expertise in both of Canada's legal systems, common law and civil law, and offers services in both English and French.

Co-Editors: Mark D. Penner and Leanne Shaughnessy. Any questions or comments regarding this publication as well as requests for reproductions should be directed to the editors.

This publication is intended to provide information to clients on recent developments in provincial, national and international law. Articles in this bulletin are not legal opinions and readers should not act on the basis of these articles without first consulting a lawyer who will provide analysis and advice on a specific matter. Fasken Martineau DuMoulin LLP is a limited liability partnership and includes law corporations.

2007 Fasken Martineau DuMoulin LLP

Endnotes

1 MONDAQ (http://www.mondaq.com/) awarded Fasken Martineau's The IP Year 2006 In Review the most popular Canadian article on its site in February, 2007 (see http://www.fasken.com/news/detail.aspx?news=5734 or at http://www.mondaq.com/content/awards.asp?id=58A5765B-45A3-41CF-96C9-2EB4E300F91B).

2 [2006] EWCA Civ 1371 http://www.bailii.org/ew/cases/EWCA/Civ/2006/1371.html

3 [2007] EWHC 1900

4 Windsurfing International Inc v Tabur Marine (Great Britain) Ltd [1985] RPC 59

5 [2007] EWCA Civ 588

6 [2006] EWCA Civ 1775 http://www.bailii.org/ew/cases/EWCA/Civ/2006/1775.html

7 For more detail on the new rules see our bulletin "Opt-In Or Lose Out!" (http://www.fasken.com/publications/detail.aspx?publication=4155) available on our website

8 OHIM (Office for Harmonization in the Internal Market, Trade Marks & Designs)

9 Douglas and Others v Hello! Limited and Others [2007] 2 WLR 920

10 [2006] EWCA Civ 1735 http://www.bailii.org/ew/cases/EWCA/Civ/2006/1735.html

11 David Murray v Express Newspapers PLC & Another ([2007] EWHC 1908 (Ch))

12 See http://www.lexpert.ca/risingstars/pdf/G_and_M_web.pdf.

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